Where an obligor transfers his/her share after establishing a mortgage on real estate jointly owned by the obligor and the surety, the amount of the secured claim to be borne by the obligor when determining whether the transfer constitutes a fraudulent act

In a lawsuit for revocation of a fraudulent act, where a mortgage has been established on an object transferred by an obligor to a beneficiary, the property jointly secured by general creditors shall be limited to the remainder after the amount of the secured debt is deducted from the amount of the secured debt. If the amount of the secured debt exceeds the value of the object, the transfer of the object shall not be deemed a fraudulent act. However, in calculating the amount of the secured debt on each real estate in case where several joint mortgages have been established on several real estate, the amount of the secured debt on each real estate shall be deemed an amount calculated by dividing the amount of the secured debt on each real estate subject to joint mortgages in proportion to the value of each real estate subject to joint mortgages in light of the purport of Article 368 of the Civil Act, barring any special circumstance. However, in cases where some of the real estate is owned by an obligor and other part of the real estate is owned by a surety, the amount of the secured debt on the real estate owned by an obligor shall be deemed the total amount of the secured debt on the other real estate owned by the obligor, as in the absence of special circumstances.

Articles 368, 406(1), 481, and 482 of the Civil Act

Supreme Court Decision 2002Da39715 Decided December 6, 2002 (amended by Supreme Court Decision 2003Da39989 Decided November 13, 2003 (Gong2003Ha, 2320) Supreme Court Decision 2005Da39068 Decided December 9, 2005 (amended by Supreme Court Decision 2007Da78234 Decided April 10, 2008)

Industrial Bank of Korea (Law Firm Solar, Attorneys Sung Chang-in et al., Counsel for the defendant-appellant)

Defendant (Attorney Ahn Byung-chul, Counsel for defendant-appellant)

Seoul Central District Court Decision 2011Na33183 Decided November 24, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Where a mortgage has been established on an object transferred to a beneficiary in a lawsuit for revocation of a fraudulent act, the property jointly secured by general creditors among the said object shall be limited to the remainder after deducting the amount of the secured debt. If the amount of the secured debt exceeds the value of the object, the transfer of the object shall not be deemed a fraudulent act. However, where several joint mortgages have been established on real estate, the amount of the secured debt on each real estate shall be calculated in proportion to the value of each real estate which is the object of joint mortgages in accordance with the purport of Article 368 of the Civil Act, barring any special circumstance, it shall be deemed that the amount of the secured debt on each real estate is divided by the amount of the secured debt on each joint mortgage in proportion to the value of each real estate which is the object of joint mortgages (see Supreme Court Decision 2003Da3989, Nov. 13, 2003). However, in cases where part of the movable property is owned by the debtor and another part of the secured debt is owned by the debtor, the total amount of the secured debt on one of 207.

On the contrary, Supreme Court Decision 2002Da39715 Decided December 6, 2002 and Supreme Court Decision 2005Da39068 Decided December 9, 2005 are to be amended to the extent that it conflicts with this opinion, to the effect that, in principle, a mortgage is established on real estate owned by a debtor and a person who has pledged his/her property to secure another's property, and that, in determining whether a debtor's transfer of his/her own share constitutes a fraudulent act, the amount of secured debt borne by the debtor's ownership is, in principle, the amount apportioned according to the ratio of each co-ownership

2. According to the reasoning of the judgment below and the reasoning of the judgment of the court of first instance cited by the court below, the non-party who is a married couple and the defendant completed the registration of ownership transfer on April 2, 2003 as to the real estate listed in the attached list of the judgment of first instance (hereinafter "the real estate of this case"), and on the same day, the court below set up a mortgage (hereinafter "the mortgage of this case") with the debtor and the non-party, the maximum debt amount at KRW 130 million to the Korea Exchange Bank as to the whole of the real estate of this case. The non-party, upon excess of his debt on March 15, 2010, donated one half of the real estate of this case (hereinafter "the share of this case") to the defendant (hereinafter "the donation contract of this case"), and completed the registration of ownership transfer to the defendant on March 16, 2010, and the defendant obtained a loan from the National Agricultural Cooperative Federation of this case and recognized the establishment of the mortgage of this case as the maximum debt amount as KRW 98 million.

Based on the facts established above, the court below determined that the contract of donation in this case constitutes a fraudulent act on the ground that the amount of secured debt is equal to the share of each co-ownership, barring any special circumstances, in cases where mortgage was established on the real estate jointly owned by the debtor and a third party, and that the amount equivalent to 1/2 of the secured debt of the right to collateral extinguished by the defendant repaid after the contract of donation in this case falls short of the market price of the share at the

3. However, whether a certain act constitutes a fraudulent act should be determined at the time of the act of disposal. As such, the lower court should have calculated the market price of shares and the amount of secured debt of the right to collateral security at the time of the donation contract in this case, not at the time of the closing of argument. Then, by examining whether the Defendant, a surety, is unable to exercise the right to demand a reimbursement against the Nonparty in accordance with the above legal principles, whether the total amount of secured debt should be deducted from the market price of the above share or only the amount at the share ratio should be deducted from the amount of the secured debt. Furthermore, whether there are special circumstances as seen above in this case should be determined by comprehensively examining the following: (a) whether the Nonparty established the right to collateral security in this case and used the borrowed money as the real estate purchase fund in this case; and (b) how the remaining purchase fund except the loan was created if the loan was used as the real estate purchase fund in this case; and (c) particularly, whether the Defendant bears part of the purchase fund with his own property

Nevertheless, the lower court did not deliberate and decide on this point and determined that the instant donation contract constitutes a fraudulent act on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of a fraudulent act, thereby failing to exhaust all necessary deliberations.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-tae (Presiding Justice)